Environmental assessment - recent cases: part 1

In the first in a two-part series, Stephen Tromans QC rounds up recent caselaw on environmental impact assessment, screening, conditions, subdivision and salami-slicing.

Introduction

In the US the intensity of environmental impact assessment (EIA) litigation eventually died down as authorities developed a firmer and more confident understanding of when an EIA was required or not and partly as a result of signals from the higher courts that the judiciary should refrain from engaging in such a hard look approach at matters best left to the discretion of designated authorities.

As this article makes clear, it is not apparent that the UK courts have yet reached the same point, although it may be no co-incidence that it appears to be getting harder for claimant lawyers to win EIA litigation. The Courts may be heeding Lord Justice Carnwath’s words all those years ago in the 2003 case of R (Jones) v Mansfield District Council that “It needs to be borne in mind that the EIA process is intended to be an aid to efficient and inclusive decision making in special cases, not an obstacle race.”

Screening generally

R (Evans) v. SSCLG [2013] EWCA Civ 114

In this case the Council in considering an application for residential development which might affect a listed building initially issued a negative screening opinion but then changed its mind and decided EIA was required. The applicant applied to the SoS for a screening direction, which found that there would be no significant effects. The challenge to the direction failed. The Court of Appeal, reviewing and applying previous cases such as R (Loader) v. SSCLG [2012] EWCA Civ 869, firmly held the line in favour of a Wednesbury based standard of review of the fact-finding exercise by the SoS. No more rigorous standard was required by ECJ cases such as Waddenzee or by developments under the Aarhus Convention. An approach which considered whether there was a real risk as opposed to a probability of an impact embodied a sufficiently precautionary approach.

R (Lyon) v. Cambridge City Council [2012] EWHC 2684 (Admin)

Planning permission was granted to a sixth form college for demolition of an existing sports pavilion and construction of a replacement. HHJ Birtles QC declined to regard this as a Schedule 2 urban development project, having regard to the paragraph 10 heading “infrastructure projects” and to the Commission Guidance. There was also an issue over the area of the development and whether it exceeded 0.5 ha. It was held this was pure issue of fact and as such reviewable only on Wednesbury grounds. The Council’s evidence on how the measurements had been undertaken using its CAD system was "compelling”.

R (TWS) v. Manchester City Council [2013] EWHC 55 (Admin)

This case shows how unfruitful it generally is to try and pick apart a screening opinion. It concerned permission for development of a stadium for FC United. Lindblom J in rejecting all heads of challenge emphasised the need to read the opinion fairly and as a whole, on which basis it was clear that all the matters said not to have been addressed had in fact been. It was also necessary to bear in mind that the planning officers concerned would have been familiar with the site and the surrounding area. The case is also a helpful illustration of the difficulties of attacking the conditions imposed by the Council as irrational.

R (Long) v. Monmouthshire County Council [2012] EWHC 3130 (Admin)

The case is another good illustration of the difficulties in challenging screening decisions. Planning permission had been granted for redevelopment of the livestock market at Abergavenny to provide a new library, supermarket and car park. Nicola Davies J found that the reasons given for the screening decision were careful and considered consultation responses, and that the grounds of challenge focused on “particularly forensic criticisms”. The legal background demonstrated that only “the essence” of the reasoning was required and all the matters said not to have been considered (listed and non-listed historic buildings, socio-economic impact, effect on watercourses) had in fact been addressed.

Aston v. SSCLG [2013] EWHC 1936 (Admin)

In this case an application for 14 houses within an AONB had been screened and found not to require EIA. There was an appeal for non-determination, at which objectors raised the question of whether EIA was required. The inspector indicated he agreed with the screening decision of the Council. Wyn Williams J rejected the challenge – it was impossible to say that an opinion had been adopted which no reasonable authority could adopt. It was not impermissible to take account of the fact that the site had been allocated as a reserve housing site for 30 years, given that the various local plan inspectors must have had regard to local environmental conditions. It was further held, applying Burridge (see below), that even if this had been wrong in law, the permission should not be quashed on the basis that there was no real possibility that the decision would have been different in any event. Wyn Williams J declined to address the obiter issue of whether an inspector is bound to refer the matter to the Secretary of State for a screening direction under reg. 9(2) if someone raises the issue that EIA should be required at the inquiry (“...and it appears to the inspector it may be such an application”.

Gregory v. Welsh Ministers [2013] EWHC 63 (Admin)

Planning permission for a small windfarm was given on appeal. The Council had given a screening opinion that it was not EIA development and the planning division of the Welsh Government had agreed with that decision when processing the appeal. The objector made written representations to the inspector that it was an EIA application. HHJ Keyser QC saw the short and decisive point as being that the inspector ought to have referred the question to the Ministers for determination and until then had no power to determine the appeal. Counsel for the Ministers effectively conceded that the application “may be an EIA application” in reg. 9(2) terms and on that that basis the judge found in deciding it was not, the inspector had impermissibly usurped the function of the Ministers. A negative screening opinion by the local authority, unlike a positive one, has no conclusive effect under the Regulations.

R (Holder) v. Gedling Borough Council [2013] EWHC 1611

The Council granted planning permission for two relatively small wind turbines. The screening opinion had referred to the 5 turbine threshold in the guidance at para A15 of Circ. 02/99 and it appeared on the face of the opinion that this had been determinative. Kenneth Parker J, though somewhat troubled by doing so, accepted evidence of the planning officer that the requisite analysis had been carried out and there had not been exclusive reliance on the threshold, reading the screening opinion as a whole and having regard to the officer’s witness statement.

Thomas v. Carmarthenshire Council [2013] EWHC 783 (Admin)

This case is interesting for the possible relevance of para. 13 of Schedule 2 (changes and extensions of existing development). Following enforcement proceedings, a section 106 agreement was concluded which allowed the Council to grant permission for a coach park on part of a former colliery. It was argued that there should have been EIA, on the basis that although the permission site was below the 0.5 ha threshold for an “urban development project”, it should also be seen as a change to or extension of the existing colliery use, and that this category was not subject to a threshold. However, it applies only if it may have significant adverse effects. Burton J held that this meant there must be a serious possibility of such effects (see R (Bateman) v. South Cambridgeshire DC) and that the Council was entitled to conclude there would not, since the section 106 actually improved matters such as drainage at the colliery site.

Conditions and the treatment of future uncertainty

R (Treagus) v. Suffolk County Council [2013] EWHC 950 (Admin)

Permission was given for an anaerobic digestion facility, overlying a chalk aquifer. The EA at screening stage described it as a marginal case but advised that significant environmental impact on groundwater quality could be avoided by careful design of the development and use of best available techniques. It was held that although no detail of the design was considered, the Council was entitled to conclude that the development was not likely to have significant environmental effects and were not Wednesbury unreasonable. The case was not like Gillespie, where there had been no investigation of a possibly contaminated site and where the mitigation measures were unknown and might themselves have significant environmental effects.

Champion v. North Norfolk District Council [2013] EWHC 1065 (Admin)

Mr Champion attacked planning permission granted for a lorry park and agricultural silos. The point at issue was the risk of runoff polluting a water course with European protected status. The Council had concluded that with proposed mitigating measures there was no relevant risk. However, it also imposed conditions requiring the developer to monitor water quality and to take steps to improve it should there be deterioration. Deputy High Court Judge James Dingemans QC agreed that this was mutually inconsistent and irrational and quashed the permission. The condition could only have been imposed if they were necessary. If there was no risk it would not have been necessary. Hence EIA and AA should have been undertaken.

Feeney v. Secretary of State for Transport [2013] EWHC 1238 (Admin)

It is important not to try and push the Champion reasoning too far. In Feeney there was a challenge to a T&WA Order for development of the Oxford-Bicester railway line. One issue was the possible effect of deposition of NOx on the Oxford Meadows SAC. A condition was imposed requiring monitoring to establish baseline levels of deposition and then to establish levels of deposition from the railway and associated parking, the setting of thresholds or criteria to protect the habitat, and the means of mitigation (by changes in the management regime) if these were not met. It was argued that this indicated that significant effects must be likely and that it offended the principle on Gillespie. Ouseley J rejected this: on the facts it was clear that the inspector was satisfied there would not be significant effects, but it was not clear whether there would be no effects (as claimed by the promoters) or less than significant effects. The condition was a way of dealing with that uncertainty – “the residual range of uncertainty between no harm and harm which is unlikely.”

Sub-division and salami-slicing

R (Catt) v. Brighton & Hove Council [2013] EWHC 977 (Admin)

The facts of this case, concerning the proposed development of the Withdean stadium, are convoluted, but the nub of the matter was whether the Council in screening had improperly sub-divided or salami-sliced the project, or failed to consider cumulative effects. In finding they acted properly, Lindblom J offered a useful summary of the law at paras 67-73.

R (Burridge) v. Breckland District Council [2012] EWHC 1102 (Admin)

Planning permission was given for a biomass renewable energy plant. This was connected by a pipe to a CHP plant to be located about 1km away. The two applications were considered and approved on the same day. Pill LJ held that they were functionally interdependent and could only be regarded as an integral part of the same project, i.e. “the development in question”. Davis LJ agreed with that analysis but held the claim must fail because he accepted evidence that the effects of the two facilities would not be likely to be any different from that screened earlier when they had been proposed on the same site. Warren J agreed with Davis LJ, holding that this was an exceptional case where failure to comply with screening requirements would not result in invalidity of the planning permission.

R (Marton-cum-Grafton Parish Council) v. North Yorkshire Council [2013] EWHC 2406 (Admin)

EFW plants can be an area of difficulty. In order to qualify as “recovery” the heat must be exported and EFW plants must generally be “CHP-ready”. However, at the time of planning permission this may simply be an aspiration, with no end-user in mind. This was the case here. Relying on the decision of R (Bristol City Council) v. SSCLG [2011] EWHC 4014 (Admin) it was held that the issue was whether the installation of CHP was probable, in which case their effects should be assessed as part of the project. Whether it was probable was a question for the authority, judged on Wednesbury grounds. Obviously if CHP is a possibility but there is no knowledge of the likely user and pipework routes the position will be entirely different to a case where there is a specific user who has signed heads of terms.

R (SAVE Britain’s Heritage) v. SSCLG [2013] EWHC 2268 (Admin)

This was a challenge to the decision of the Secretary of State that EIA was not required for the demolition of a Victorian chapel in the Klondyke area of Sefton. It was said it should have been considered as part of later wider phases of demolition and redevelopment. Stadlen J in a very lengthy judgment considered the authorities, but noted that many of the cases arose in different contexts. Distinguishing R (Candlish) v. Hastings BC, where a spine road had no function without future development, he observed that the application to demolish the Chapel would have been made irrespective of possible future development, as it was derelict and represented a hazard (§ 258). He also noted that in assessing the objective reality of whether inevitably more substantial development was involved, it was relevant and admissible to look at evidence of the intention of the developer: R (Ellson) v. Greenwich LBC (§ 291). On the facts, the case did not offend the principle of salami-slicing. The practical effect was not to avoid the application of EIA requirements – the proposed demolition of the Chapel had been subject to a screening direction, and so would future phases.

Surveys

National Trust’s Application [2013] NIQB 60

Provision of surveys for species such as lizards is often a vexed issue in EIA. In this case there was a challenge to planning permission for a hotel and golf complex close to the Giant’s Causeway, a World Heritage Site. The claimant argued that a number of surveys had been deferred until after permission, contrary to Hardy v. Cornwall County Council. Weatherup J held that if surveys were required to assess likely effects, then they could not be deferred. However, it was for the decision-maker to decide if they were required. For example, if there was sufficient remaining suitable terrain to which lizards could be translocated, then it was rational to conclude there would not be likely significant effects. It is important to distinguish between surveys required to assess effects, and those to be undertaken to enable mitigation to be implemented, or to monitor whether the mitigation is operating as it should.

Stephen Tromans QC is a barrister at 39 Essex Street. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..

The second article will address cases in relation to issues including need, enforcement, compensation and appropriate assessment.